ICC/CPI - 15th Session of the Assembly of States Parties to the Rome Statute of the ICC, marked by the withdrawal of South Africa, Burundi and The Gambia. Radio Nizkor, 30Nov16

The fifteenth session of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court was held from 16 to 24 November 2016 at The Hague, the Netherlands.

This session was marked by the recent withdrawals from the ICC announced by South Africa and Burundi in October 2016 and by The Gambia in November 2016.

Radio Nizkor attended the 15th session of the ASP and recorded several country statements delivered at the General Debate. We are making some of these statements available as a sample of the ongoing debate at the ICC.

On 19 October 2016, the Minister of International Relations and Cooperation of South Africa, Ms Maite Nkoana-Mashabane, handed the United Nations Secretary-General South Africa's intention to withdraw, a move that has been welcomed by the Chairperson of the Portfolio Committee on International Relations and Cooperation of the Parliament of South Africa. Burundi deposited its formal withdrawal before the Secretary-General of the United Nations on 27 October 2016, and this action shall take effect for Burundi on 27 October 2017. The representatives of both countries explained to the ASP the reasons behind these withdrawals. Their statements are included among the audio files presented below.

Universality of the Rome Statute and cooperation between states and the Court were also discussed. The activation of the jurisdiction of the Court over the crime of aggression, the definition of which was incorporated into the Rome Statute through the so-called "Kampala amendments" in 2010, was an important issue of debate. The ICC will be able to take action against the crime of aggression once 30 States Parties have ratified the amendments and once States Parties have decided by a 2/3 majority to activate the Court's jurisdiction, which they may do only after 1 January 2017. Having attained in 2016 the minimum number of 30 ratifications required, the ASP should activate the jurisdiction of the ICC over this crime next year. However, the United Kingdom and France, both States Parties to the ICC, but not to the Kampala amendments, made it clear during this session that they are against activation...

Please note that the audio statements are listed in chronological order (although not consecutive) of presentation. You can listen to the country statements by clicking on the icon of the audio format you wish to reproduce, either Real Media or Mp3:

Country

File name

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Statement by South Africa at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

zaf15asp

00:10:39

ENG

Statement by Liechtenstein at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

lie15asp

00:08:47

ENG

Statement by Botswana at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

bwa15asp

00:09:47

ENG

Statement by the Democratic Republic of Congo at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

cod15asp

00:06:09

ENG

Statement by Bangladesh at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

bgd15asp

00:08:12

ENG

Statement by Slovakia on behalf of the European Union at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

svk15asp

00:10:34

ENG

Statement by Germany at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

deu15asp

00:07:39

ENG

Statement by France at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

fra15asp

00:07:42

ENG

Statement by Ecuador at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

ecu15asp

00:10:17

ENG

Statement by Andorra at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

and15asp

00:08:07

FRA

Statement by Japan at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

jpn15asp

00:10:04

ENG

Statement by Burundi at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

bdi15asp

00:23:36

FRA

Statement by Namibia at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC

"We have come a long way from Nuremberg, and have miles to go before we sleep

Hope is the engine that drives human endeavour. After some 20 million people were killed in WW1,
League of Nations diplomats recognized the need to eliminate war as an instrument of national
policy. They advised that future wars of aggression should be punished as an international crime. The
common response from powerful states was: 'The time is not yet ripe.' An additional 50 million
victims perished in WW2. In response, an International Military Tribunal was set up in Nuremberg
to try German leaders responsible for crimes against peace (aggression), crimes against humanity,
and war crimes. [...]

In December 1946, the UN affirmed the Nuremberg principles and judgement. Committees were directed to draft a Code of Crimes Against the Peace and Security of Mankind, including the crime of aggression, and to plan for a permanent international criminal jurisdiction to try offenders. [...]

The UN, of course, could not exist in a political vacuum... The veto-wielding powers in the Council proved unable 'to save succeeding generations from the scourge of war.' [...]

The 1946 mandate to define the crime of aggression was finally approved by the UN General Assembly, on December 14th, 1974, as Resolution 3314. To achieve consensus, last-minute clauses were inserted to the effect that the definition was only a non-binding guide to the Security Council, which was given wide latitude to determine whether an act of aggression had indeed occurred. [...]

A code of international crimes was completed in 1996 by the 34-member International Law Commission that favoured the original Nuremberg definition. One hundred eighty-five nations... formed UN committees to fashion a permanent international criminal tribunal. Hundreds of open questions were left to be resolved during a final four-week conference of plenipotentiaries in Rome in the summer of 1998. In an unforgettable climax, after the official time had expired, Chairman Philippe Kirsch announced that the Rome Statute for an International Criminal Court (ICC) had been approved. [...]

A last-minute compromise was accepted, where aggression would be listed as one of the four core crimes, although the ICC could not exercise its jurisdiction over that crime until and unless certain specified conditions could be met. There would have to be an acceptable definition, as well as clear confirmation that UN Charter provisions (meaning Security Council rights) would be respected. The Rome Statute... went into effect on July 1st, 2002. Special Working Groups of the Assembly of State Parties (ASP) set out to meet the requirements for activating ICC jurisdiction over 'the supreme international crime.'

A Special Working Group laboured long and mightily to meet the preconditions laid down at Rome. Progress was made on a revised definition, but agreement on the role of the Security Council was nowhere in sight. When the Review Conference began in Kampala, Uganda, on May 31st, 2010, an improved definition clarified the distinction between the crime of aggression by an individual... and an act of aggression by a state... New hurdles were added by requiring agreement by 30 states, and approval by at least two-thirds of all parties before an amendment would become binding. No one could be tried for aggression until 2017 at the earliest - at which time the ASP would consider the matter further.

The Rome Statute is a voluntary contract in treaty form entered into by consenting states. These states were not obliged to be bound by anything that they did not accept. To reassure nations that did not want to be bound, the amendments adopted in Kampala stipulated that State Parties can elect in advance not to be subject to aggression charges. [...]

So what to expect for the future?... Allowing aggressors to remain immune from prosecution by the ICC surely does not deter illegal war-making, but rather encourages it... To be sure, the long historical record of glorifying war causes many doubts about the utility of trying to alter the way that people think about such vital issues. Skepticism may be understandable, but it does not justify inaction. Unavoidable temporary shortcomings should not obscure progress and the need for change..."

Benjamin B. Ferencz was a prosecutor at the Nuremberg war crimes trials, and has been a lifetime advocate of the international rule of law and the establishment of an International Criminal Court.

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aggression

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00:11:52

ENG

Icc/Cpi - ICC Rome Statute amended at Review Conference in Kampala so as to include a definition of the crime of aggression. (Assembly of States Parties to the ICC; Prof. Willian Schabas). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 05Feb11

On 11 June 2010, the Review Conference of the Rome Statute of the International Criminal Court (ICC) concluded in Kampala, Uganda, after meeting for two weeks, from 31 May to 11 June.

The Review Conference consisted of a meeting of the States Parties to the Rome Statute primarily to consider amendments to the Statute. It toke place pursuant to a requirement under article 123(1) of the Rome Statute that a conference to consider amendments be held seven years after the coming into force of the Statute.

The Review Conference was conducted on a two-track basis, namely: the amendment track and the stocktaking track.

Under the amendment track, States Parties considered limited and specific amendments to the Rome Statute particularly the inclusion of the definition and trigger mechanism for the crime of aggression.

Under the stocktaking track, States Parties, civil society organizations and other stakeholders engaged debate and discussions covering four topics, namely: the impact of the Rome Statute system on victims and affected communities, cooperation, complementarity, and peace and justice.

The Conference adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime.

"[T]he Conference approved the definition of aggression that emerged as a result of the work of the Special Working Group on the Crime of Aggression, together with two understandings (understandings 6 and 7) and Elements of Crimes.

The definition is comprised of two paragraphs, the first establishing that the crime of aggression 'means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations', the second providing a detailed seven-paragraph enumeration of acts that qualify as an act of aggression..."

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kampala

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00:09:36

ENG

Icc/Cpi - President Bush signs anti-ICC Nethercutt Amendment and
sanctions countries that support the ICC. (American Non-Governmental Organizations Coalition for the
ICC; Citizens for Global Solutions). Radio Nizkor with the collaboration of the Schell Center for
International Human Rights at Yale Law School, 20Dec04

On December 7, 2004 President Bush signed into effect the so-called Nethercutt Amendment,
which suspends Economic Support Fund assistance to States Parties to the International Criminal Court or
ICC who have not signed bilateral immunity agreements with the US.

What the Nethercutt Amendment does is exempt all U.S. nationals and contractors with the US from
accountability for widespread and systematic war crimes, crimes against humanity, and genocide committed
on the territory of a signatory country.

On December 9th., 2004 the Dutch European Union Presidency made public its Declaration on the
Nethercutt amendment, regretting its adoption...

The US has deployed its anti-ICC efforts during previous congressional sessions. The House and the
Senate had approved on July 2002 another piece of legislation prohibiting US cooperation with the
International Criminal Court: the American Servicemembers' Protection Act or ASPA...

The Bush Administration has also been conducting a vigorous campaign of trying to conclude bilateral
international agreements that will remove US nationals from the reach of the Court. These are the
so-called "Article 98 bilateral agreements"...

Also recently, the US has deployed its anti-ICC efforts before the UN General Assembly, where the US
attempted to have the ICC taken off the UN General Assembly agenda. However, on November 19th, 2004, the
GA Sixth Committee (Legal) unanimously passed its resolution (and corrigendum) on the ICC without a
vote... When the GA Plenary adopted the resolution on December 2, 2004, the US delegation dissociated
itself from consensus on the resolution.

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iccus

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00:19:20

ENG

Icc/Cpi - Update on the works of the Assembly of States Parties to the Rome Statute of the ICC. Radio Nizkor with the collaboration of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School, 17sep04

The Assembly of States Parties to the Rome Statute of the International Criminal Court has just held its third session, from 6 to 10 September 2004, in The Hague, the Netherlands, where the Court is based.

The Assembly of States Parties is the management oversight and legislative body of the International Criminal Court. It is composed of representatives of the States that have ratified and acceded to the Rome Statute.

During its 3rd. session, among other decisions, the Assembly adopted a negotiated Draft Relationship Agreement between the Court and the United Nations and elected Ms. Fatou Bensouda, of Gambia, to the office of Deputy Prosecutor for Prosecutions. It also adopted the Court's 2005 programme budget and a Contingency Fund was established in the amount of 10,000,000 Euros.

Given the ICC's role in ensuring that the gravest international crimes do not go unpunished, we think it is important to be aware of the key decisions which will affect its adequate functioning.

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